Abortions See A Possible Hurdle

Arlington Heights Trustee Stephen Daday thinks school neighborhoods are no place for abortion clinics. And he wants to change local zoning law to enforce that view if any such clinics were to open in the village.

But if trustees try to require a special-use permit for abortion clinics, as Daday recently suggested, Arlington Heights would be moving into rocky legal waters and possibly could set a precedent on local abortion restrictions.

Curbs on abortion clinics based on local zoning laws have been struck down by state or federal courts in at least five states.

But those opinions were handed down before the landmark U.S. Supreme Court ruling in 1992, known as the Casey decision, which said some local regulations of abortion could be constitutional if they did not place an undue burden on the woman seeking an abortion.

That legal opinion, combined with the conservative shift among policymakers following this month's election, has abortion-rights supporters closely watching moves like that envisioned in Arlington Heights.

Janet Krepps, staff attorney for the Center for Reproductive Law and Policy in Washington, D.C., said she believes that zoning restrictions of an abortion clinic that exceeded those of any other medical facility would be illegal, even under the more relaxed rules of the Casey decision.

But Kate Michelman, president of the National Abortion and Reproductive Rights Action League, said it is impossible to predict how a court would rule on a specific restriction because the Casey decision left so many unanswered questions.

"We do not know what kind of a right we have to abortion since the Casey decision," Michelman said. "In upholding the Pennsylvania law (considered in that case), the Supreme Court did not define how far a state can go."

That law requires a 24-hour waiting period. Minors must get parental consent, and all women seeking an abortion must be given literature on fetal development and alternatives to abortion.

Last week, in a sign of how the Illinois General Assembly would handle abortion questions, a state legislative panel voted to direct the state Department of Public Aid to ignore federal law and refuse to pay for abortions for poor women in the case of rape or incest.

The same day, the Arlington Heights Legal Department began researching the constitutionality of the village's proposed ordinance.

The issue is being considered in Arlington Heights at the suggestion of Daday, who said he proposed the change in the zoning law after a resident who opposes abortion on religious grounds mentioned to him that a clinic might be locating in Arlington Heights.

Daday said he was concerned that under current village law an abortion clinic could go anywhere medical facilities exist. He said he thought it would be an "incompatible use" with nearby schools or day care centers.

"A doctor's or dentist's office is a healing thing. But an abortion clinic, by the nature of what it does, is just the opposite," said Daday, who opposes abortion.

Getting a special-use permit generally requires an appearance before a zoning board and possibly a public hearing. Michelman warned that this could give protesters the names of doctors who perform abortions, thus leaving physicians vulnerable to attack.

And depending on the wording of the ordinance, it could force the village into the position of asking doctors whether abortions ever were performed in their offices, Assistant Village Atty. Robin Ward told the village's Legal Committee last week.

Northwest Community Hospital now is the only Arlington Heights facility where abortions are performed-and only in certain circumstances.

The hospital will allow a physician to terminate a pregnancy if the woman's life or health is in danger, if the fetus suffers from fatal defects or an abnormality that has a life expectancy of only weeks or months, and in cases of rape or incest, according to a hospital spokeswoman. No abortions are allowed after 24 weeks, and Down's syndrome is not one of the conditions for which an abortion would be allowed.

Using zoning laws to exclude abortion clinics is one of the strategies listed by Joseph Scheidler, head of the Chicago-based Pro-Life Action League, in his book "Closed-99 Ways to Stop Abortion."

But courts typically have struck down such attempts to restrict abortions:

- In Ohio in 1988, a federal appellate court ruled that Washington Township officials could not put abortion clinics in a separate zoning category from all other medical facilities.

- A federal appellate court in Florida ruled in 1981 that the town of Deerfield Beach violated the Constitution by refusing to allow an abortion clinic in an area zoned for medical facilities after churches and residents complained.